Fight the Treatment Industrial Complex

AFSC-Arizona staff are amazing advocates for prisoners - and as such, are true blessings to our communities. Spend time on their site - lots of resources.

Retiring Arizona Prison Watch...

This site was originally started in July 2009 as an independent endeavor to monitor conditions in Arizona's criminal justice system, as well as offer some critical analysis of the prison industrial complex from a prison abolitionist/anarchist's perspective. It was begun in the aftermath of the death of Marcia Powell, a 48 year old AZ state prisoner who was left in an outdoor cage in the desert sun for over four hours while on a 10-minute suicide watch. That was at ASPC-Perryville, in Goodyear, AZ, in May 2009.

Marcia, a seriously mentally ill woman with a meth habit sentenced to the minimum mandatory 27 months in prison for prostitution was already deemed by society as disposable. She was therefore easily ignored by numerous prison officers as she pleaded for water and relief from the sun for four hours. She was ultimately found collapsed in her own feces, with second degree burns on her body, her organs failing, and her body exceeding the 108 degrees the thermometer would record. 16 officers and staff were disciplined for her death, but no one was ever prosecuted for her homicide. Her story is here.

Marcia's death and this blog compelled me to work for the next 5 1/2 years to document and challenge the prison industrial complex in AZ, most specifically as manifested in the Arizona Department of Corrections. I corresponded with over 1,000 prisoners in that time, as well as many of their loved ones, offering all what resources I could find for fighting the AZ DOC themselves - most regarding their health or matters of personal safety.

I also began to work with the survivors of prison violence, as I often heard from the loved ones of the dead, and learned their stories. During that time I memorialized the Ghosts of Jan Brewer - state prisoners under her regime who were lost to neglect, suicide or violence - across the city's sidewalks in large chalk murals. Some of that art is here.

In November 2014 I left Phoenix abruptly to care for my family. By early 2015 I was no longer keeping up this blog site, save occasional posts about a young prisoner in solitary confinement in Arpaio's jail, Jessie B.

I'm deeply grateful to the prisoners who educated, confided in, and encouraged me throughout the years I did this work. My life has been made all the more rich and meaningful by their engagement.

I've linked to some posts about advocating for state prisoner health and safety to the right, as well as other resources for families and friends. If you are in need of additional assistance fighting the prison industrial complex in Arizona - or if you care to offer some aid to the cause - please contact the Phoenix Anarchist Black Cross at PO Box 7241 / Tempe, AZ 85281. collective@phoenixabc.org

Rape in prison is a terrifying and traumatic experience. It is an abuse that no inmate, whatever the reason for his incarceration, should have to endure. As the Supreme Court has emphasized, rape is simply "not part of the penalty that criminal offenders pay for their offenses."

Unfortunately, our justice system offers scant relief to sexually abused prisoners. Although inmates are, in principle, granted a degree of constitutional protection from harm, they face daunting obstacles to the assertion of their legal rights.

Rights Against Rape in Theory, But Not In Practice

In Farmer v. Brennan, a 1994 decision involving a transsexual inmate who sued prison authorities for failing to provide protection from rape, the Supreme Court recognized that prisoner-on-prisoner sexual exploitation is constitutionally unacceptable. Confirming the prior holdings of a number of lower courts, the Supreme Court held that a prison official violates the Eighth Amendment if, acting with deliberate indifference, he exposes a prisoner to a substantial risk of sexual assault.

Justice Clarence Thomas dissented. (Which came as no surprise. In his retrograde view, the Eighth Amendment should not be interpreted to cover any prison abuses. Instead, it only prohibits torturous punishments meted out by statute or by sentencing judges.) Justice Thomas apparently believes that rape in prison is inevitable. In his dissent, he stated that "[p]risons are necessarily dangerous places; they house society's most antisocial and violent people in close proximity with one another. Regrettably, some level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do . . . unless all prisoners are locked in their cells 24 hours a day and sedated." (quotations omitted)

Although the law is set by the Court's majority, many lower court judges appear to hold views approaching those of Justice Thomas. Notwithstanding the relevant legal rules, many judges seem eager to abdicate responsibility for protecting prisoners from abuse. While they may be less explicit than Thomas in justifying their disregard of prisoners' claims of abuse, their actions, in case after case, reflect a similar bias.

Courts' Toleration of Prison Rape, and Official Indifference

Prisoners seeking recourse for violations of their constitutional rights — include the Eighth Amendment violations that occur if officials are deliberately indifferent to a prisoner's risk of rape — can file civil actions in federal court. Yet such cases rarely succeed. Having reviewed dozens of prisoners' legal filings in the course of research on prisoner-on-prisoner rape, I can attest that even the most compelling cases are unlikely to survive judicial scrutiny.

Why is that so? To begin with, prisoners are among the least lucrative of clients, and certainly the least sympathetic to juries, so that few lawyers are willing to litigate on their behalf. The vast majority of cases challenging prison abuses are thus filed by inmates acting pro se — in other words, on their own behalf. Often filing handwritten complaints that are scribbled and hard to decipher, and lacking knowledge of legal procedure, prisoners are easily tripped up and tricked by the law's procedural complexities. As a result, even cases challenging serious abuses in prison are frequently dismissed in the early stages of litigation.

Moreover, as Justice Thomas's words show, many federal judges view prisoners' legal claims with an extremely cynical eye. Perhaps they entirely disbelieve prisoners' complaints of abuse, preferring to focus their concern on the constraints under which correctional authorities operate. Perhaps they simply are — as Justice Thomas seems to be — resigned to tolerating prison violence and exploitation as somehow inevitable.

Their caution may, to some extent, reflect their belief that crucial policy and budgetary decisions affecting prison conditions are made elsewhere, and that guards and other officials should not be blamed for the predictable abuses that result. But the buck must stop somewhere. By such reasoning, the courts have ensured near-complete impunity for abuses.

Judicial Rationalizations for "Inevitable" Abuse

The reasoning behind the 1988 decision in Chandler v. Jones is indicative of the tendency — although in that case, the court's comments were more candid than most. The case involved an inmate who was sexually pressured and harassed after being transferred to a dangerous housing unit. The federal district court dismissed the case, explaining that "sexual harassment of inmates in prisons would appear to be a fact of life."

Absolving prison officials of responsibility for the prison's poor conditions, the court said that the officials at least "made the best of a bad situation." The decision reflects the notion — apparently deeply ingrained — that prison abuse is an inevitable truth officials cannot change.

The decision in Kish v. County of Milwaukee, issued in 1971 by the Seventh Circuit Court of Appeals, reflects similar thinking. Ruling against two inmates who were sexually assaulted, the court suggested that sexual assaults were frequent in the overcrowded jail under consideration, but that prison officials could not be blamed for the problem. As the court explained: "the assaults were a result of the physical layout and overcrowding of the jail, both matters beyond the control of the defendant."

The courts' tendency to overlook abuses is strongly reinforced by the requirement in such cases that prison officials have "actual knowledge" of the problem. Under this standard, unless the court finds that a prison official was personally aware of the plaintiff's risk of rape, it must rule in favor of the defendant. In other words, the legal standard allows court to dismiss even those cases in which the risk of rape would have been obvious to any reasonable person in the official's position.

Prisons as a Barometer

Not all federal judges are insensitive to prison abuses. Indeed, a few worthy efforts have been made to put a stop to prisoner-on-prisoner sexual abuse — most notably, the rulings in LaMarca v. Turner, issued in 1987 by a federal district court in the Southern District of Florida, and Redman v. County of San Diego, issued in 1990 by the Ninth Circuit Court of Appeals. Yet it is fair to say these rulings are the exception.

As many have noted, the state of a country's prisons is a telling indicator of its level of civilization. The barbarity of sexual assault in prison reflects poorly on our society, and on our courts.

Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. She has visited scores of penal facilities in the United States and Latin America. Human Rights Watch's Report on prison rape, entitled No Escape: Male Rape in U.S. Prisons, was published today (date of article publication). More information on prison rape can also be found on Human Rights Watch's website.